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crimes shall be by jury is enlarged by the guarantee of a speedy and public trial. Inasmuch as some of the states had been divided into two judicial districts, it is moreover provided that the trial shall take place, not only in the state, but also in the judicial district, in which the crime has been committed. Besides this, the accused must be informed of the nature and cause of the charge; must be confronted with the witnesses against him; is entitled to compulsory process for witnesses for the defense and also to the assistance of counsel.' The word “jury” means the common-law jury of twelve men, who must give a unanimous verdict. If they cannot agree a new jury must be drawn. According to the act of June 8, 1872, when a jury is being impaneled, in cases of treason and other capital crimes, the accused is entitled to twenty peremptory challenges (that is, may reject twenty jurors without giving any reason) and the United States to five; in other felonies the corresponding figures are ten and three; and in all other cases three jurors may be set aside by each party. The fifth amendment provides that no person shall be held to answer for a capital or “otherwise infamous crime” except “on a presentment or indictment of a grand jury.” In a presentment the grand jury acts upon its own knowledge without any indictment having been presented to it, and the indictment must afterwards be supplied by the court. In indictments the grand jury does not act on its own initiative, but on an indictment submitted to it for its decision. It is admitted that the expression “infamous crime” is a technical one, but the definitions are neither sufficiently clear nor entirely harmonious. This is, however, to a certain extent,
' In England, persons accused of crime were not entitled to the assistance of counsel until the passage of the act of 1836.
2 Brunner, in the supplement to the second edition of Desty's Conof no importance, because in all crimes which come within the judicial power of the United States, the complaint is made either by presentment or indictment. A grand jury, according to the law of March 3, 1865, must consist of not less than sixteen nor more than twenty-three jurors. This provision of the fifth amendment does not apply to the federal army or to the militia when the latter, in time of public peril or of war, is in the service of the United States; in other words, they may be subjected by law to courts-martial. No one can be compelled in any criminal case to be a witness against himself. No one can be twice put in jeopardy of life or limb for the same offense. A man is put into jeopardy (in the sense of this clause) only when the jury has given a verdict. If the trial has to be stopped for any legal reason, it does not count as a trial under this provision. So, too, of course, when the person tried is granted a new trial; because the law gives him this for his own benefit. A new trial is granted when the court considers the finding contrary to law or to the evidence produced. In capital cases the court can, even without the consent of the accused, discharge the jury if it thinks there is good ground for doing so. If the jury bring in a verdict which covers only some points of the complaint, the accused is protected against a new trial as to these, but not as to the others. If the jury is dismissed without the consent of the accused, and it was not a case in which the law recognizes this as necessary, such, for instance, as a mistrial, he cannot again be tried for the same offense stitution of the United States, p. 320, says: “Infamous crimes, in the meaning of this clause, are only those made infamous or declared a felony by express act of congress:” and cites in proof of this United States vs. Wynn, McCrary, III., 266.
1 See J. Proffatt, Law of Jury Trial, San Francisco, 1877; H. Hirsh, Law relating to Juries, N. Y., 1879.
although he has not been acquitted. The eighth amendment forbids the requirement of excessive bail, the imposition of excessive fines and the infliction of cruel and unusual punishments. Bail is always admitted, except when the crime charged is punishable by death or lifelong imprisonment. Even in these cases it may be taken.
$ 87. Jury TRIALS IN CIVIL CASES. The seventh amendment progides “that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law.” As only the preservation of a right is here concerned, this evidently refers to the English common law at the time of the adoption of the constitution, and the intention is to extend the right, so far as constitutional law permits, to cases in which it did not exist before. Moreover, since it is only a right, the parties can waive it. So, too, the right is sufficiently preserved when, in case of appeal from the first decision, a trial by jury may be demanded. It is to be noticed, again, that the right is restricted to suits at common law; in equity and in admiralty and maritime courts, it does not exist. If in a common-law suit the question of fact has been decided by a jury and an appeal is taken, the appellate court has nothing to do with the question of fact; it has simply to decide whether the law was properly applied. It is only when a new trial is granted that questions of fact are retries, but even then they must be decided again by a jury. The seventh amendment also applies in common-law suits, which have
i To the provisions of the fifth amendment as to criminal procedure, there is coupled-on the prohibition against taking private property for public uses without just compensation. It goes without saying that the right of expropriation belongs to the federal government only when public uses within its jurisdiction are concerned. It relates back to the “right of eminent domain" and this belongs to the states, except as to those rights deduced from this, which the constitutional purposes of the federal government require to be vested in it. In the territories the United States have the right of eminent domain. If a territory be transformed into a state, the right passes over to the latter. As to the right of eminent domain see Cooley, Constitutional Limitations, ch. XV.
2 This is not true of criminal cases. In them the jury is a necessary part of the court, and the accused cannot waive it.
first been tried with a jury in a state court and are then · brought by appeal before the United States supreme court.
AMENDMENT OF THE CONSTITUTION. 8 88. FOR AMENDING THE CONSTITUTION, different methods are provided by the fifth article. The initiatory step may be taken either by congress or by the state legislatures. The latter cannot propose any amendments, but congress must call a convention for this purpose if the legislatures of two-thirds of the states demand it. This has never yet happened. All amendments have been proposed by congress, in which body two-thirds of each house must favor the proposition. The states decide whether its proposals shall be ratified, but congress determines whether the vote of the states is to be cast by their legislatures or by conventions called for that particular purpose. In either case, a ratification requires the assent of three-fourths of the states. The constitution says nothing as to an obligation on the part of the states to come to any conclusion about a proposed amendment. In practice it has been decided that there is no such obligation. I have already discussed the question whether and how far a state is bound by its assent once given. This has never been properly settled, and it is by no means impossible that it may yet give rise to serious difficulties.
THE CONSTITUTIONAL AND GENERAL LAW
OF THE SEPARATE STATES. $ 89. PRELIMINARY REMARKS. I cannot attempt to treat the general law of each of the thirty-eight states separately. Regard for space would make this impossible, even if the sketch were confined to the most superficial outline. Yet a superficial sketch would present an endless array of repetitions. But, on the other hand, the most cursory perusal of the different state constitutions suffices to convince any one that it would be just as inadmissible to select a certain state and to analyze its general law as a type of the whole. The selection would be entirely arbitrary; for there are so many and such important differences in details that no state can be used as a pattern or type of the rest. It must suffice, therefore, to give a general characterization in broad outlines, laying especial stress upon what is common to all or nearly all, and briefly noting the most important differences. In order to lessen the repetition which is unavoidable, and not to heap up a mass of useless details, I shall not always note to how many or to which states what I say applies. If the matters concerned are peculiar to one or to a few states, this will be pointed out. The omission to point it out must nevertheless not be construed as meaning always that the statement is one of quite general application. In the more important questions in which this is the case I shall say so expressly.
$ 90. ORIGIN OF THE CONSTITUTIONS. The constitutions of the states are without exception the work of constitu